Well, it seems that the prospect of public backlash if the Court issued a decision that guaranteed the right to bear arms for men subject to domestic violence protection orders, might have prompted the Court majority to decide that there was a limit to extreme Second Amendment rights after all. Some wondered cynically how low could the Supremes go. Not low enough, it seems, to arm Zacky Rahimi. Last Friday, the Court ruled 8-1 to uphold the law under which Rahimi had been convicted.
Rahimi had violated a federal law that barred anyone subject to a domestic violence protective order, and posed a “credible threat” to a partner, from keeping firearms. He had appealed, arguing that the law violated the Second Amendment.
As the Supreme Court summed up the facts of his case:
“Rahimi met his girlfriend, C. M., for lunch in a parking lot. C. M. is also the mother of Rahimi’s young child, A. R. During the meal, Rahimi and C. M. attempted to leave, but Rahimi grabbed her by the wrist, dragged her back to his car, and shoved her in, causing her to strike her head against the dashboard. When he realized that a bystander was watching the altercation, Rahimi paused to retrieve a gun from under the passenger seat. C. M. took advantage of the opportunity to escape. Rahimi fired as she fled, although it is unclear whether he was aiming at C. M. or the witness. Rahimi later called C. M. and warned that he would shoot her if she reported the incident. Undeterred by this threat, C. M. went to court to seek a restraining order.”
She got the order. He ignored it. And the saga of Zacky Rahimi continued, according to the court’s version:
“In November, Rahimi threatened a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. And while Rahimi was under arrest for that assault, the Texas police identified him as the suspect in a spate of at least five additional shootings. The first, which occurred in December 2020, arose from Rahimi’s dealing in illegal drugs. After one of his customers ‘started talking trash,’ Rahimi drove to the man’s home and shot into it.
“While driving the next day, Rahimi collided with another car, exited his vehicle, and proceeded to shoot at the other car. Three days later, he fired his gun in the air while driving through a residential neighborhood. A few weeks after that, Rahimi was speeding on a highway near Arlington, Texas, when a truck flashed its lights at him. Rahimi hit the brakes and cut across traffic to chase the truck. Once off the highway, he fired several times toward the truck and a nearby car before fleeing.
“Two weeks after that, Rahimi and a friend were dining at a roadside burger restaurant. When the restaurant declined his friend’s credit card, Rahimi pulled a gun and shot into the air. The police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, a rifle, ammunition— and a copy of the restraining order.”
Two lower courts, including the conservative 5th Circuit, had ruled against Rahimi. Then, two years ago, the Supreme Court came out – one might say out of the blue – with the Bruen case. The decision (written by Clarence Thomas) said that Second Amendment rights could be limited only by regulations that matched those in existence when the Amendment was passed — which is to say the late 18th century. Fourteen years earlier, in Heller, the Court had upended generations of conventional legal wisdom and court precedent by ruling that despite referring explicitly to the importance of “a well-regulated militia,” the Second Amendment established an individual right to keep and bear arms, specifically an individual right to keep a handgun in the home for self-defense.
The Heller court, though, also said this right was subject to reasonable regulation. Bruen went way beyond that.
Faced with the language of Bruen, the 5th Circuit reconsidered Rahimi. It decided that under Bruen, the law under which Rahimi had been convicted was unconstitutional. Nobody knew what the Supremes would do with the government’s appeal.
Rahimi tested the limits of the Bruen approach. The Court’s response marks the only ripple in what has seemed a regular tsunami of pro-gun rulings. Only days before – in a narrowly and dubiously – legalistic interpretation of federal statute, the Court had ruled (not on Second Amendment grounds) that the federal ban on private ownership of machine guns didn’t apply to bump stocks, which can enable an AR-15 to fire up to 800 rounds a minute. The Court airily said that Congress can simply alter the law – which is legally true but politically implausible.
But now we have the Rahimi decision. It’s clearly not a turning of the tide. Chief Justice John Roberts’ decision made it clear that the Court wasn’t backing away from Heller or Bruen, and it cited copious historical research to argue that restricting Rahimi fell clearly into the kind of long-ago precedents that Bruen requires. Justice Thomas dissented on the grounds that the historical analogies weren’t close enough. (Would any analogy be close enough for him?) Even Justice Alito joined the Rahimi majority.
The good news about the Rahimi decision, Jesse Wegman wrote in The New York Times, is simply that eight justices ruled against Rahimi. “The bad news,” Wegman wrote, “is that the justices had to go to such lengths to do it — debating the meaning of old English surety and affray laws rather than simply acknowledging that no right is absolute, and that the government has always kept weapons away from people who have proved themselves to be dangerous to others.”
But Roberts’ decision focused on the history of keeping weapons away from people who posed specific credible threats. It shot down the government’s assertion that Zacky Rahimi shouldn’t be allowed to bear arms because he wasn’t a “responsible” person. Roberts was having none of that approach; too vague, Roberts said. “The Court used this term in Heller and Bruen to describe the class of citizens who undoubtedly enjoy the Second Amendment right,” he conceded. “Those decisions, however, did not define the term and said nothing about the status of citizens who were not ‘responsible.’”
Well, if “responsible” is too vague, what about the exclusions Roberts cited approvingly of felons and the mentally ill? An estimated one in five Americans — close to 60 million people — have some kind of mental illness. Should they all be excluded? And, for that matter, how about felons such as everybody’s favorite convicted felon, Donald Trump? But really, does lying about your finances in order to deceive voters about your fitness for public office have anything to do with owning a gun? For that matter, does the use of illegal drugs? (An estimated 37 million or so Americans use them. Not all are dangerous.)
Could a court find that two laws under which Hunter Biden was convicted — one that requires a gun buyer to truthfully deny using illegal drugs and one that forbids an illegal drug user to possess a gun — are unconstitutional? Why not? And why aren’t the Second Amendment zealots taking up Hunter’s cause? Who knows how the court would rule on that one. Court conservatives clearly haven’t abandoned and won’t concede they’ve even modified Bruen. They clearly won’t uphold any law that says a gun owner must be “responsible.”
Let’s be grateful for Rahimi. And hold our breaths for what comes next.
